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1

2 UNITED STATES DISTRICT COURT


3 SOUTHERN DISTRICT OF NEW YORK
4 -----------------------------------x
5 :
6 BARBARA NITKE and :
7 THE NATIONAL COALITION FOR SEXUAL :
8 FREEDOM, : 01 Civ. 11476 (RMB)
9 :
10 Plaintiffs, : FINDINGS OF FACT
11 : AND
12 -v- : CONCLUSIONS OF LAW
13 :
14 :
15 ALBERTO R. GONZALES, ATTORNEY :
16 GENERAL OF THE UNITED STATES OF :
17 AMERICA and THE UNITED STATES OF :
18 AMERICA, :
19 :
20 Defendants. :
21 :
22 -----------------------------------x

23 JOHN WIRENIUS, Leeds Morelli & Brown, P.C.,


24 Carle Place, NY, for plaintiffs.

25 BENJAMIN H. TORRANCE, Assistant United


26 States Attorney (David N. Kelley, United
27 States Attorney for the Southern District
28 of New York, Andrew W. Schilling, and Beth
29 Goldman, Assistant United States Attorneys,
30 of counsel), New York, NY, for defendants.

31 BEFORE: ROBERT D. SACK, Circuit Judge,* RICHARD M. BERMAN and


32 GERARD E. LYNCH, District Judges.

33 PER CURIAM:

34 Plaintiffs Barbara Nitke and the National Coalition for

35 Sexual Freedom1 challenge the constitutionality of the

*
Of the United States Court of Appeals for the Second
Circuit.
1
In our previous opinion and order, we dismissed the
complaints of plaintiffs Nitke and the National Coalition for
Sexual Freedom Foundation (an entity different from plaintiff the
1 Communications Decency Act of 1996 (CDA), enacted as title V of

2 the Telecommunications Act of 1996, Pub. L. No. 104-104, 110

3 Stat. 133 (amending and codified at scattered sections of 47

4 U.S.C.). The CDA's obscenity provisions make it a crime, inter

5 alia, knowingly to transmit obscenity by means of the Internet to

6 a minor. 47 U.S.C. § 223(a)(1)(B). The plaintiffs seek a) a

7 declaratory judgment that the CDA is unconstitutional because it

8 is substantially overbroad, and b) a permanent injunction against

9 its enforcement. See Am. Compl. at 15.

10 The plaintiffs instituted this action in December 2001.

11 It was referred to us as a three-judge panel pursuant to section

12 561 of the CDA, 110 Stat. at 142 (codified at 47 U.S.C. § 223

13 note). On October 27–28, 2004, after our decision on the

14 defendants' motion to dismiss and the plaintiffs' motion for a

15 preliminary injunction, Nitke v. Ashcroft, 253 F. Supp. 2d 587

16 (S.D.N.Y. 2003) (Nitke I), and subsequent repleading and

17 discovery, we held a bench trial on the plaintiffs' remaining

18 claim challenging the CDA's alleged overbreadth. Pursuant to

19 Federal Rule of Civil Procedure 52(a), we set forth our findings

20 of fact and conclusions of law below.

21 BACKGROUND

22 I. The Parties

National Coalition for Sexual Freedom) for lack of standing, with


leave to replead. Nitke v. Ashcroft, 253 F. Supp. 2d 587,
596–99, 611 (S.D.N.Y. 2003). Nitke has repleaded; the Foundation
did not and is therefore no longer a plaintiff.

2
1 Plaintiff Barbara Nitke is an art photographer whose

2 work focuses on sexually explicit subject matter. Nitke Decl.

3 ¶¶ 1, 3. Much of her work features couples engaging in

4 sadomasochistic sexual behavior. Id. ¶ 3. Many of her

5 photographs include explicit images of male and female genitalia,

6 oral, anal, and vaginal intercourse, and other sexual acts.

7 Pls.' Ex. 4. Nitke is on the faculty of the School of Visual

8 Arts and is President of the Camera Club of New York. Nitke

9 Decl. ¶ 1. Her work has been displayed in several galleries and

10 is in the permanent collection of at least one museum. Id. ¶ 2.

11 Nitke has created and maintains a Website that displays her

12 photographs, which, she asserts, are in furtherance of her

13 artistic goals. Id. ¶ 9.

14 Plaintiff the National Coalition for Sexual Freedom

15 (NCSF) is a not-for-profit organization formed for the purpose of

16 addressing perceived discrimination against individuals and

17 groups who engage in non-mainstream sexual practices, including

18 sadomasochism and polyamory. Wright Rev. Decl. ¶ 2. NCSF

19 members include both organizations and individuals. Id. Some of

20 these members maintain Websites that contain sexually explicit

21 content. Id. ¶ 3. NCSF provides a forum for members to share

22 concerns about the consequences of putting certain content on

23 their Websites. Id. NCSF also gathers and disseminates

24 information about conferences and meetings relating to the issue

25 of sadomasochism, receives requests for assistance regarding

3
1 media incidents, and has published organization guidelines for

2 members entitled "How to Protect Your Event." Id. ¶¶ 8–9.

3 Defendant Alberto Gonzales is the Attorney General of

4 the United States.2 In that capacity, he is "head of the

5 Department of Justice and chief law enforcement officer of the

6 Federal Government." U.S. Dep't of Justice, "Office of the

7 Attorney General," at http://www.usdoj.gov/ag/ (last visited

8 June 9, 2005).

9 II. The Internet

10 The Internet is a network of interconnected private and

11 public computers that are linked for communications and data-

12 sharing purposes. See 47 U.S.C. § 230(f)(1); see also Nitke I,

13 253 F. Supp. 2d at 593-94. Individuals may obtain access to the

14 Internet through computers that are connected to it directly or

15 through an Internet service provider. The World Wide Web is one

16 component of the Internet. The Web is formed from a network of

17 computers called "Web servers" that host pages of content

18 accessible via the Hypertext Transfer Protocol (HTTP). Nitke v.

19 Ashcroft, No. 01 Civ. 11476, slip. op. at 23 (S.D.N.Y. Sept. 16,

20 2004) (joint pre-trial order in the instant litigation).

21 Individuals may view information on the Web using "browser"

22 software, and may publish information to the Web by placing

2
At the time the plaintiffs commenced this action, John
Ashcroft was Attorney General of the United States and was named
as a defendant. Pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, Attorney General Gonzales was substituted for
former Attorney General Ashcroft as a defendant.

4
1 information on a Web server, directly or through a Website host.

2 Id. Websites often provide links to other Websites. Id.

3 Individuals and other content providers may acquire with relative

4 ease the necessary server space to put up Websites or transmit

5 information in other ways. Many sites allow users to access all

6 Webpages that the site contains; other sites require that the

7 user enter specified information before he or she can gain access

8 to their contents. McCulloch Decl. ¶ 2; see also Reno v. ACLU,

9 521 U.S. 844, 849-53 (1997) (describing the Internet in the

10 course of addressing constitutionality of portion of the CDA);

11 ACLU v. Reno, 929 F. Supp. 824, 830-38 (E.D. Pa. 1996) (same),

12 aff'd, 521 U.S. 844, 849-53 (1997).

13 III. The CDA

14 The CDA prohibits "by means of a telecommunications

15 device knowingly . . . initiat[ing] the transmission of[] any

16 comment, request, suggestion, proposal, image, or other

17 communication which is obscene or child pornography, knowing that

18 the recipient of the communication is under 18 years of age,

19 regardless of whether the maker of such communication placed the

20 call or initiated the communication." 47 U.S.C. § 223(a)(1)(B).

21 "Given the size of the potential audience for most messages, in

22 the absence of a viable age verification process, the sender [of

23 any given communication] must be charged with knowing that one or

24 more minors will likely view it." Reno v. ACLU, 521 U.S. at 876.

25 Thus, the CDA prohibits (subject to affirmative defenses

5
1 discussed below) any transmission of obscenity (or child

2 pornography which is not at issue here) by means of the Internet.

3 As the parties do not dispute, the CDA incorporates the

4 definition of obscenity set forth in Miller v. California, 413

5 U.S. 15 (1973). See Nitke I, 253 F. Supp. 2d at 594. Under the

6 Miller test, a communication is obscene if, first, "the average

7 person, applying contemporary community standards would find that

8 the work, taken as a whole, appeals to the prurient interest;"

9 second, "the work depicts or describes, in a patently offensive

10 way, sexual conduct," when judged by contemporary community

11 standards; and third, "the work, taken as a whole, lacks serious

12 literary, artistic, political, or scientific value." Miller, 413

13 U.S. at 24 (citations and internal quotation marks omitted).

14 The first and second prongs of the Miller test are, by

15 their terms, determined in accordance with contemporary community

16 standards in the relevant locality. See id.; see also Nitke I,

17 253 F. Supp. 2d at 600-01. Thus, whether material appeals to the

18 prurient interest and is patently offensive are questions of fact

19 that depend on a particular community's standards. See Miller,

20 413 U.S. at 30; see also Nitke I, 253 F. Supp. 2d at 601. As a

21 result, material that is not legally obscene in one locality may

22 be legally obscene in another. See Miller, 413 U.S. at 32–33;

23 see also Nitke I, 253 F. Supp. 2d at 602. By contrast, the third

24 prong of the Miller test -- that the work not have serious

25 literary, artistic, political, or scientific value -- is based on

6
1 a national standard for such value that is established as a

2 matter of law. Reno v. ACLU, 521 U.S. at 873; see also Nitke I,

3 253 F. Supp. 2d at 600-01.

4 The CDA provides two affirmative defenses: that the

5 defendant "has taken, in good faith, reasonable, effective, and

6 appropriate actions under the circumstances to restrict or

7 prevent access by minors to a[n obscene] communication" or "has

8 restricted access to such communication by requiring use of a

9 verified credit card, debit account, adult access code, or adult

10 personal identification number." 47 U.S.C. § 223(e)(5).

11 DISCUSSION

12 As a foundation for our findings of fact and

13 conclusions of law, we rehearse here the basic legal principles

14 applicable to resolving this pre-enforcement challenge to the

15 CDA.

16 I. Standing to Challenge the CDA

17 The Government argues that the plaintiffs do not have

18 standing to challenge the CDA. Defs.' Post-Trial Proposed

19 Findings Fact & Conclusions Law (Defs.' PTPF) ¶ 50. Under

20 Article III of the United States Constitution, the jurisdiction

21 of the federal courts is limited to "adjudicating actual 'cases'

22 and 'controversies.'" Allen v. Wright, 468 U.S. 737, 750 (1984).

23 The doctrine of standing grew out of this fundamental rule. "In

24 essence the question of standing is whether the litigant is

25 entitled to have the court decide the merits of the dispute or of

7
1 particular issues." Id. at 750–51 (quoting Warth v. Seldin, 422

2 U.S. 490, 498 (1975)). To meet the constitutional requirements

3 for standing, "[a] plaintiff must allege personal injury fairly

4 traceable to the defendant's allegedly unlawful conduct and

5 likely to be redressed by the requested relief." Id. at 751.

6 "The party invoking federal jurisdiction bears the

7 burden of establishing these elements." Lujan v. Defenders of

8 Wildlife, 504 U.S. 555, 561 (1992). "Since they are not mere

9 pleading requirements but rather an indispensable part of the

10 plaintiff's case, each element must be supported in the same way

11 as any other matter on which the plaintiff bears the burden of

12 proof, i.e., with the manner and degree of evidence required at

13 the successive stages of the litigation." Id.

14 The injury required for standing to pursue a First

15 Amendment challenge may take the form of "constitutional

16 violations . . . aris[ing] from the deterrent, or 'chilling,'

17 effect of government regulations that fall short of a direct

18 prohibition against the exercise of First Amendment rights."

19 Laird v. Tatum, 408 U.S. 1, 11 (1972); accord Meese v. Keene, 481

20 U.S. 465, 472 (1987). For such injury to meet the requirement

21 that it be "distinct and palpable," Allen, 468 U.S. at 751, the

22 plaintiff must have suffered more than a "subjective 'chill,'"

23 Laird, 408 U.S. at 13–14; see also Nitke I, 253 F. Supp. 2d at

24 596. The plaintiff must show that she is subject to a "specific

25 present objective harm or a threat of specific future harm."

8
1 Laird, 408 U.S. at 13–14; see also Nitke I, 253 F. Supp. 2d at

2 596. In a pre-enforcement challenge such as the one before us,

3 the plaintiff may do so by establishing that she has "an actual

4 and well-founded fear that the law will be enforced against" her.

5 Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 382 (2d Cir.

6 2000) (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383,

7 393 (1988)).

8 To show that a fear is "actual," "a plaintiff must

9 proffer some objective evidence to substantiate his claim that

10 the challenged conduct has deterred him from engaging in

11 protected activity." Bordell v. Gen. Elec. Co., 922 F.2d 1057,

12 1061 (2d Cir. 1991); see also Nitke I, 253 F. Supp. 2d at 596.

13 And to show that a fear is "well-founded," the plaintiff must

14 show that it is reasonable. Vt. Right to Life, 221 F.3d at 383.

15 A fear that a statute will be enforced against a plaintiff is

16 reasonable if the plaintiff's interpretation of the statute to

17 reach his or her conduct is itself reasonable. See Am.

18 Booksellers Ass'n, 484 U.S. at 392 (concluding that plaintiffs

19 had standing to bring pre-enforcement First Amendment challenge

20 where they would suffer injury "if their interpretation of the

21 statute is correct"). Mere assurances by the government that it

22 does not seek to enforce the statute do not ipso facto make such

23 a fear unreasonable, because "there is nothing that prevents the

24 [government] from changing its mind" and the resulting

9
1 uncertainty is sufficient to establish the reasonableness of a

2 fear. Vt. Right to Life, 221 F.3d at 383.

3 In addition to showing that they have suffered injury

4 in fact, plaintiffs must also show that the injury is "fairly

5 traceable" to the conduct complained of, and "likely to be

6 redressed" by the relief sought. Allen, 468 U.S. at 750; see

7 also Nitke I, 253 F. Supp. 2d at 596. The "fairly traceable"

8 requirement is satisfied if there is a "causal connection between

9 the assertedly unlawful conduct and the alleged injury." Allen,

10 468 U.S. at 753 n.19. And the "redressability" requirement is

11 satisfied if there is a "causal connection between the alleged

12 injury and the judicial relief requested." Id.

13 The doctrine of associational standing provides a

14 limited exception to the requirement that a plaintiff "must

15 assert his own legal rights and interests." Bano v. Union

16 Carbide Corp., 361 F.3d 696, 715 (2d Cir. 2004). Under this

17 doctrine, "an association [may have] standing to maintain a suit

18 to redress its members' injuries, rather than an injury to

19 itself" if it can meet a three-prong test. Id. at 713. "Under

20 this test, the association has standing if '(a) its members would

21 otherwise have standing to sue in their own right; (b) the

22 interests it seeks to protect are germane to the organization's

23 purpose; and (c) neither the claim asserted nor the relief

24 requested requires the participation of individual members in the

25 lawsuit.'" Id. (quoting Hunt v. Wash. State Apple Adver. Comm'n,

10
1 432 U.S. 333, 343 (1977)); see also Nitke I, 253 F. Supp. 2d at

2 597.

3 II. Overbreadth

4 The plaintiffs assert that the CDA is substantially

5 overbroad in violation of the First Amendment because it reaches

6 both obscene and non-obscene speech. Am. Compl. ¶¶ 43–46.

7 Obscene speech is not protected under the First Amendment. Sable

8 Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124 (1999).

9 In Miller, 413 U.S. at 24, the Supreme Court established the

10 three-part test for obscenity set forth above. Speech that is

11 not obscene under the Miller test is entitled to First Amendment

12 protection even if it is sexually explicit or "indecent."3 Id.

13 at 26–28; see also Reno v. ACLU, 521 U.S. at 874–75. Congress

14 may regulate obscene speech so long as such regulation is

15 rational. See Miller, 413 U.S. at 19–20.

16 A statute is overbroad if it prohibits speech that is

17 protected by the First Amendment. Broadrick v. Oklahoma, 413

18 U.S. 601, 612 (1973). Although minor overinclusiveness is not

19 enough to render a statute unconstitutional, Fort Wayne Books,

20 Inc. v. Indiana, 489 U.S. 46, 60 (1989), if the statute prohibits

3
This assumes, of course, that the speech does not fall
outside the First Amendment for unrelated reasons. See, e.g.,
Virginia v. Black, 538 U.S. 343, 358-59 (2003) (discussing the
"few limited areas, [such as fighting words, that] are of such
slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest
in order and morality," and where the speech is therefore not
constitutionally protected (internal quotation marks omitted)).

11
1 a substantial amount of speech relative to its legal breadth,

2 then it is facially invalid, Virginia v. Hicks, 539 U.S. 113,

3 123–24 (2003); accord McConnell v. Fed. Election Comm'n, 540 U.S.

4 93, 207 (2003). "In such cases, it has been the judgment of [the

5 Supreme Court] that the possible harm to society in permitting

6 some unprotected speech to go unpunished is outweighed by the

7 possibility that protected speech of others may be muted and

8 perceived grievances left to fester because of the possible

9 inhibitory effects of overly broad statutes." Broadrick, 413

10 U.S. at 612. The substantiality of such overbreadth is

11 determined by comparing the amount of protected speech that is

12 prohibited by the statute to its "plainly legitimate sweep." Id.

13 at 615; accord Fort Wayne Books, 489 U.S. at 60; see also Nitke

14 I, 253 F. Supp. 2d at 605.

15 The plaintiffs assert that by applying the local

16 standards of the Miller test to the Internet, the CDA sweeps

17 within its prohibitions a substantial amount of protected speech.

18 Under the Miller test, speech that is legally obscene and

19 therefore without constitutional protection in one community may

20 enjoy full protection in another. Miller, 413 U.S. at 32–33; see

21 also Nitke I, 253 F. Supp. 2d at 603. The plaintiffs assert that

22 they cannot control the locations to which their Internet

23 publications are transmitted, and therefore any material that

24 they publish to the Internet may be prohibited under the CDA

25 because it may be legally obscene in one or more communities even

12
1 if not legally obscene in others. Thus, they argue that the CDA

2 is overbroad inasmuch as it prohibits, based on the standards

3 prevailing in one or more communities, a substantial amount of

4 speech that is protected, based on standards prevailing in at one

5 or more other communities.

6 In our earlier Opinion and Order, we denied the

7 government's motion to dismiss the complaint with respect to the

8 plaintiffs' overbreadth challenge. Nitke I, 253 F. Supp. 2d at

9 606.4 In so doing, we concluded that the Supreme Court's opinion

10 in Ashcroft v. ACLU, 535 U.S. 564 (2002), did not preclude the

11 plaintiffs' challenge to the CDA's obscenity provisions on

12 overbreadth grounds. Nitke I, 253 F. Supp. 2d at 605–06. We

13 explained that while "three Justices [in Ashcroft v. ACLU] formed

14 a plurality that would have held that the community standards

15 test could never render an Internet statute overbroad," "no one

16 opinion carried a majority of the Justices" and we would

17 therefore hew to the "'position taken by those Members who

18 concurred in the judgments on the narrowest grounds.'" Id. at

19 605 (quoting Marks v. United States, 430 U.S. 188, 193 (1977)).

20 We concluded that Ashcroft v. ACLU "does not preclude overbreadth

4
In Nitke I, we also granted the government's motion to
dismiss the complaint with respect to the plaintiffs' claim that
the CDA was unconstitutionally vague as a result of its
incorporation of the Miller standard, concluding that that claim
was foreclosed by the Supreme Court's decision that the Miller
standard was not unconstitutionally vague. Nitke I, 253 F. Supp.
2d at 608 (citing Miller, 413 U.S. at 27–28).

13
1 challenges to other federal Internet obscenity statutes based on

2 their use of the community standards test." Id.

3 As we explained in Nitke I, whether the CDA is

4 overbroad is an empirical question. Nitke I, 253 F. Supp. 2d at

5 607. In this declaratory and injunctive action, the plaintiffs

6 bear the burden of establishing that the CDA is overbroad and the

7 substantiality of such overbreadth. In Nitke I, we detailed what

8 the plaintiffs would be required to establish to prevail on this

9 claim. Id. at 606–08. First, we said that the plaintiffs would

10 "need to present evidence as to the total amount of speech that

11 is implicated by the CDA." Id. at 606. Second, we said that the

12 plaintiffs must "present evidence as to the amount of protected

13 speech -- lacking in serious value [and therefore not

14 categorically protected], but potentially not patently offensive

15 or appealing to the prurient interest in all communities [and

16 therefore possibly lawful in some communities while unlawful in

17 others]." Id. In presenting evidence on this second point, we

18 stated that the plaintiffs were required to 1) "demonstrate how

19 much material is potentially not protected by the serious

20 societal value prong," id.; 2) "examine community standards in

21 various localities and the extent to which they differ with

22 respect to the material at issue," id. at 607, in order to

23 "establish that the variation in community standards is

24 substantial enough that the potential for inconsistent

25 determinations of obscenity is greater than that faced by

26 purveyors of traditional pornography, who can control the

14
1 dissemination of their materials," id.; 3) "present evidence that

2 this variation in community standards will actually cause

3 speakers to suppress their speech, because of the technological

4 impossibility of reliably limiting the geographic distribution of

5 their materials," id.; and 4) "present evidence tending to show

6 that the CDA's two affirmative defenses do not sufficiently limit

7 the amount of protected speech covered by the statute, or

8 plaintiffs' exposure to multiple prosecutions under different

9 standards," id. As to the latter, the plaintiffs assert that it

10 is technologically impossible for publishers to take

11 "effective . . . actions . . . to restrict or prevent access," 47

12 U.S.C. § 223(e)(5)(A), to their Webpages and that the cost and

13 privacy concerns associated with credit card verification may be

14 prohibitive. Am. Compl. ¶¶ 37–38; Nitke Decl. ¶¶ 20–21.

15 FINDINGS OF FACT AND CONCLUSIONS OF LAW

16 During the two-day bench trial of this case, pursuant

17 to the Joint Pre-Trial Order, the witnesses called by the parties

18 gave their direct testimony by declaration. These declarations

19 were marked as exhibits at trial and the court heard cross-

20 examination of the witnesses. Our findings of fact and

21 conclusions of law based on that trial are as follows.

22 I. Findings of Fact

23 1. Images posted on the Internet may generally be

24 viewed by Internet users in any community in the United States,

25 although owners of Websites may employ software in an attempt to

26 restrict access to their sites. Compare Laurie Decl. passim

15
1 (stating that such technology is ineffective), Finkelstein Decl.

2 ¶¶ 8, 13–18 (same), Tr. at 60, 63 (Hechtman testimony)

3 (discussing use of credit cards to verify age and stating that it

4 is ineffective), with Miltonberger Decl. ¶ 2 (stating that

5 current technology is effective), McCulloch Decl. ¶ 2 (same).

6 2. Works that are considered offensive in a community

7 may engender an obscenity prosecution in that community,

8 irrespective of whether it will ultimately be judicially

9 determined that those works have serious artistic or social

10 value. Danto Decl. ¶¶ 10–12; Nitke Decl. ¶ 12; Tr. at 73–74

11 (Steinberg testimony).

12 3. The determination of whether certain works have

13 serious artistic or social value turns on the subjective judgment

14 of the trier of fact, and the difficulty of assessing whether a

15 work will be deemed to have serious artistic or social value

16 increases when the work deals with sexually explicit subject

17 matter. Danto Decl. ¶¶ 10–11, 15; Tr. at 93–94 (Danto

18 testimony).

19 4. Nitke refrained from publishing on her Website

20 certain sexually explicit images, including depictions of sexual

21 practices that were not "mainstream" or which Nitke thought would

22 be otherwise controversial because of their sexual content, Nitke

23 Decl. ¶ 16; Pls.' Ex. 4, because she was afraid that she might be

24 prosecuted in one or more communities for doing so, Nitke Decl.

25 ¶ 16.

16
1 5. Because of the sexual content of Nitke's images,

2 she faces a material risk that her works will be considered

3 "patently offensive" and "appeal[ing] to the prurient interest"

4 in one or more communities and that she will be prosecuted for

5 obscenity. Tr. at 288–90 (Douglas testimony) (stating that

6 images depicting non-mainstream sexual acts are more likely to be

7 prosecuted); Douglas Decl. ¶ 5(b).

8 6. Although Nitke's work is regarded by many as having

9 serious artistic value, Nitke Decl. ¶¶ 17–18 (stating that works

10 were created in line with artistic aims); Danto Decl. ¶ 12, and

11 the government concedes here that Nitke's photographs have such

12 value, Defs.' PTPF ¶ 51; Tr. at 293, there is a reasonable

13 likelihood that other federal prosecutors will not agree that her

14 work has such value and will prosecute her under the CDA.

15 7. There is also a reasonable likelihood that some

16 triers of fact, applying a national standard for artistic value,

17 would not agree that Nitke's work has serious artistic value.

18 8. The Eulenspiegel Society (TES) is a member

19 organization of plaintiff NCSF. Hechtman Decl. ¶ 1.

20 9. TES chose not to post sexually explicit materials,

21 including the contents of its magazine Prometheus, on its Website

22 in order to avoid a possible prosecution for obscenity in one or

23 more communities. Hechtman Decl. ¶¶ 5–6; Pls.' Ex. 12.

24 10. Because of the sexual content of these materials,

25 TES faces a substantial likelihood that the materials would be

26 considered "patently offensive" and "appeal[ing] to the prurient

17
1 interest" in some communities. See Tr. at 288–90 (Douglas

2 testimony); Douglas Decl. ¶ 5(b).

3 11. Although the materials that TES refrained from

4 posting on its Website are regarded as having serious artistic

5 and social value by some, see Hechtman Decl. ¶ 8, there is a

6 reasonable likelihood that some triers of fact would find that

7 these materials lacked serious artistic or social value.

8 12. NCSF provides a forum for members of the

9 organization to share concerns about the consequences of placing

10 certain content on their Websites and aims to fight what it

11 considers to be discrimination against and provide support for

12 individuals and groups who engage in non-mainstream sexual

13 practices.

14 13. The plaintiffs have offered insufficient evidence

15 to enable us to make a finding as to "the total amount of speech

16 that is implicated by the CDA," Nitke I, 253 F. Supp. 2d at 606.

17 Indeed, the plaintiffs concede that they cannot "compute the

18 number of potentially affected Websites and other speakers with

19 anything like accuracy." Pls.' Post-Trial Proposed Findings Fact

20 & Conclusions Law (Pls.' PTPF) ¶ 48.

21 14. The plaintiffs have offered evidence that there

22 are at least 1.4 million Websites that mention "BDSM" (bondage,

23 discipline, and sadomasochism). Moser Decl. ¶ 12. The

24 plaintiffs have offered insufficient evidence to enable us to

25 make a finding, however, as to how many of those sites might be

26 considered obscene, let alone how many would be considered

18
1 obscene in at least one community while considered not obscene in

2 others.

3 15. The plaintiffs have submitted images and written

4 works that represent material, posted to a small number of

5 Websites, that they contend may be considered obscene in some

6 communities but not in others. These examples provide us with an

7 insufficient basis upon which to make a finding as to the total

8 amount of speech that is protected in some communities but that

9 is prohibited by the CDA because it is obscene in other

10 communities.

11 16. While the plaintiffs have offered evidence that,

12 for a small sample of communities, obscenity standards differ

13 from community to community, see Douglas Decl. ¶¶ 2(A), 5(A)–(B);

14 Nitke Decl. ¶¶ 12, 14; Danto Decl. ¶ 9; Wright Decl. ¶¶ 6–7, they

15 have not offered sufficient evidence to enable us to determine,

16 for the United States as a whole, the extent to which standards

17 vary from community to community or the degree to which these

18 standards vary with respect to the types of works in question.

19 Indeed, the plaintiffs' expert witness testified that he was

20 unable to determine the standards for obscenity in any given

21 region. Douglas Decl. ¶ 5(D); see also Tr. at 264 (Douglas

22 testimony) (affirming that he "saw no pattern in terms of what

23 was prosecuted nationwide"); id. at 267 (Douglas testimony)

24 (agreeing that "community standards within American communities

25 are not reasonably determinable" and that Douglas has "never

19
1 conducted a poll or survey to determine community standards in

2 various communities"); Pls.' PTPF ¶ 50.

3 17. There is insufficient evidence offered by the

4 plaintiffs to enable us to make a finding as to how much of the

5 material that might be found to be patently offensive and

6 appealing to the prurient interest in at least one community, and

7 that would not be found to be so offensive or appealing in

8 others, would also be found not to have serious artistic or

9 social value.

10 18. There is insufficient evidence in the record to

11 enable us to make a finding as to whether "the variation in

12 community standards is substantial enough that the potential for

13 inconsistent determinations of obscenity is greater than that

14 faced by purveyors of traditional pornography, who can control

15 the dissemination of their materials." Nitke I, 253 F. Supp. 2d

16 at 607.

17 II. Conclusions of Law

18 1. Nitke's fear that the CDA will be enforced against

19 her is "actual and well-founded." Vt. Right to Life, 221 F.3d at

20 382. She has submitted objective evidence to substantiate the

21 claim that she has been deterred from exercising her free-speech

22 rights, and this fear is based on a reasonable interpretation of

23 the CDA. See Am. Booksellers Ass'n, 484 U.S. at 392; Vt. Right

24 to Life, 221 F.3d at 383.

20
1 2. The injury in fact that Nitke suffered is fairly

2 traceable to enforcement of the CDA and would likely be redressed

3 by the relief sought. See Allen, 468 U.S. at 750.

4 3. Nitke therefore has standing to bring this pre-

5 enforcement challenge to the CDA. See id. at 750–51.

6 4. NCSF has submitted objective evidence that one of

7 its member organizations, TES, has been deterred from exercising

8 its free-speech rights and that this deterrence is based on a

9 well-founded fear that the CDA would be enforced against it. See

10 Bordell, 922 F.2d at 1061; Vt. Right to Life, 221 F.3d at 383.

11 5. The injury in fact that TES suffered is fairly

12 traceable to enforcement of the CDA and would likely be redressed

13 by the relief sought. See Allen, 468 U.S. at 750.

14 6. TES thus would have standing to challenge the

15 enforcement of the CDA in its own right. See id. at 750–51.

16 7. The interests that NCSF seeks to protect -- the

17 ability of those practicing non-mainstream sexual activities to

18 exercise their free-speech rights -- are relevant to its purposes

19 of fighting perceived discrimination against non-mainstream

20 sexual practices and providing a forum for discussion related to

21 that topic.

22 8. Neither the overbreadth claim asserted nor the

23 injunctive relief requested requires the participation of TES as

24 a plaintiff, because the claim is addressed to the breadth of the

25 CDA with respect to all speech it reaches and the relief sought

26 applies equally to all affected persons and organizations.

21
1 9. NCSF has therefore established that it has standing

2 to challenge the constitutionality of the CDA on behalf of its

3 members. See Bano, 361 F.3d at 715.

4 10. Because the plaintiffs presented insufficient

5 evidence to support findings regarding "the total amount of

6 speech that is implicated by the CDA," "the amount of protected

7 speech -- lacking in serious value, but potentially not patently

8 offensive or appealing to the prurient interest in all

9 communities -- that is inhibited by the [CDA]," or whether "the

10 variation in community standards is substantial enough that the

11 potential for inconsistent determinations of obscenity is greater

12 than that faced by purveyors of traditional pornography, who can

13 control the dissemination of their materials," Nitke I, 253 F.

14 Supp. 2d at 606-07, they have not established their claim that

15 the overbreadth of the CDA, if any, is substantial and that the

16 CDA therefore violates the First Amendment, id.

17 11. Because we decide the case on the basis of the

18 failure of the plaintiffs to establish substantial overbreadth,

19 we need not and do not reach the issues of whether some of the

20 works that plaintiffs present as examples of chilled speech would

21 be protected by the social value prong of the Miller test,

22 whether current technology would enable plaintiffs to control the

23 locations to which their Internet publications are transmitted,

24 or whether the CDA's two affirmative defenses provide an adequate

25 shield from liability.

22